2018 (9) TMI 1881 - SC - Indian Laws

Court dismisses writ petition challenging arrests of human rights activists; petitioners cannot seek reliefs not available to accused.

The court dismissed the writ petition challenging the arrests of human rights activists by the Maharashtra Police. It held that the petitioners, acting as ... Power to appoint Special Investigation Team - Article 32 jurisdiction to order and monitor investigation - Accused cannot choose investigating agency - Maintainability of public interest litigation by strangers in a criminal investigation - Circumspection in transferring investigation and exceptional circumstances test - Safeguards in arrest under Article 21 and Section 41B CrPC - Impact of selective media disclosures on fairness of investigationAccused cannot choose investigating agency - Circumspection in transferring investigation and exceptional circumstances test - Whether the investigating agency may be changed at the instance of the accused or their next friends - HELD THAT: - The Court reaffirmed that as a general rule accused persons have no right to select or insist upon a particular investigating agency and courts must exercise the power to transfer or change investigation with great circumspection. Precedents establish that transfer to a central agency or constitution of a SIT is extraordinary and permissible only in exceptional circumstances where it is necessary to secure a fair, independent and credible investigation. The petition did not disclose specific, particularized material of mala fides in the investigative process to justify an extraordinary displacement of the ongoing investigation; evaluation of the sufficiency or genuineness of the material collected in investigation is not appropriate at this interlocutory stage. Consequently, the primary reliefs seeking transfer of investigation or court monitored inquiry were not granted. [Paras 21, 22, 25, 26, 31]Relief to change the investigating agency or to order court monitored investigation is refused; such intervention is exceptional and was not warranted on the material before the Court.Maintainability of public interest litigation by strangers in a criminal investigation - Article 32 jurisdiction to order and monitor investigation - Whether a writ petition filed by third parties/next friends (or in the guise of PIL) is maintainable to seek change of investigating agency or similar reliefs in an on going criminal investigation - HELD THAT: - The Court held that next friends may espouse the cause of accused only so long as the accused themselves are unable to approach the Court; once the accused subscribe to the petition, the next friend basis cannot be used to obtain reliefs which the accused themselves could not directly obtain. The jurisdiction Under Article 32 to secure fundamental rights is wide and technical objections to locus may be outflanked where grave threats to liberty and dignity are asserted, but reliefs that are not available to accused as a matter of law cannot be sought indirectly by strangers via PIL. The petitioners who were strangers initially could not be permitted to obtain reliefs that the accused cannot demand as of right. [Paras 27, 29, 30, 42]The writ petition filed by next friends/strangers cannot be permitted to obtain transfer of investigation; the application to transpose the arrested persons as petitioners is allowed, but the next friend/petition route cannot circumvent the settled rule that accused cannot choose the investigating agency.Impact of selective media disclosures on fairness of investigation - Power to appoint Special Investigation Team - Article 32 jurisdiction to order and monitor investigation - Whether the conduct of the Pune police, including selective disclosures to media and other circumstances, warranted constitution of a Special Investigating Team (SIT) or court monitored investigation - HELD THAT: - The majority declined to appoint a SIT on the material before it, emphasising restraint and that detailed scrutiny of the case diary or evaluation of evidence at this stage would prejudice investigation and trial. The Court noted the seriousness of media disclosures and the need for impartial investigation, but held that the threshold for directing an alternate investigating agency requires clear, specific and exceptional circumstances. The Court therefore refrained from detailed factual adjudication and left investigation to proceed, while preserving the arrested persons' remedies before the competent forums. (A separate concurring/dissenting opinion recorded that, given the disclosed conduct and risk to fairness, a SIT ought to have been appointed and monitored.) [Paras 31, 58, 59, 61]The request for constitution of a SIT or court monitored investigation is not accepted by the Court on the material produced; the Court declined to substitute the investigating agency at this stage.Safeguards in arrest under Article 21 and Section 41B CrPC - Impact of selective media disclosures on fairness of investigation - Whether procedural safeguards relating to arrest and the manner of searches (including presence and nature of panch witnesses and media disclosures) warranted immediate judicial intervention in the form of reliefs sought - HELD THAT: - The Court observed the importance of statutory and constitutional safeguards on arrest (including requirements akin to Section 41B and the principles in DK Basu) and noted troubling aspects: use of municipal employees as panch witnesses transported with police and selective media briefings by senior police officers which could impair the impartiality of investigation. Nevertheless, the Court declined to make sweeping factual findings or to grant the specific reliefs sought, directing that any grievances about procedural irregularities or forensic examination outside the State be raised before the jurisdictional courts where appropriate consideration can be given. [Paras 32, 61, 63, 64]Court recorded concern over procedural safeguards and media conduct but did not grant the extraordinary reliefs; issues of improper panchas, forensic examination outside the State or alleged procedural violations are left to be raised before the competent trial/jurisdictional courts.Article 32 jurisdiction to order and monitor investigation - Whether the arrested persons should be released by this Court on the basis of the petition - HELD THAT: - The Court held that applications for release (habeas corpus/bail etc.) must be pursued before the competent jurisdictional courts. The detained persons are at liberty to prosecute such remedies in the appropriate fora and the Court refrained from expressing any view on maintainability or merits of such reliefs in this petition. [Paras 33, 37]Prayer for immediate release was not granted; the arrested persons retain liberty to seek release before the appropriate courts.Final Conclusion: The writ petition seeking appointment of an independent investigating agency/SIT or court monitored investigation is refused on the material before this Court; next friend/PIL route cannot be used to secure reliefs that accused cannot demand as of right. Concerns about media disclosures and certain procedural aspects were noted, but detailed adjudication was declined to avoid prejudicing the investigation or trial. The detained persons are permitted to pursue remedies before jurisdictional courts; interim house arrest directions were continued for a limited period and all applications disposed in terms of the judgment. Issues Involved:1. High-handed action of Maharashtra Police in arresting human rights activists.2. Legitimacy and evidence supporting the arrests.3. Allegations of political motivation and suppression of dissent.4. Request for independent investigation.5. Maintainability of the writ petition by third parties.6. Involvement of the accused in unlawful activities.7. Conduct of the police and media leaks.8. Request for Special Investigating Team (SIT) and court-monitored investigation.9. Legal remedies and rights of the accused.Detailed Analysis:1. High-handed action of Maharashtra Police in arresting human rights activists:The petitioners, five distinguished individuals, filed a petition on 29th August 2018, alleging that the Maharashtra Police raided homes and arrested five human rights activists, journalists, advocates, and political workers on 28th August 2018. The petitioners claimed that the arrests were intended to silence dissenting voices and stifle honest dissent. The activists arrested were Gautam Navalakha, Sudha Bharadwaj, Varavara Rao, Arun Ferreira, and Vernon Gonsalves.2. Legitimacy and evidence supporting the arrests:The arrests were made in connection with FIR No. 0004/2018 dated 8th January 2018, registered at Vishram Bagh Police Station, Pune City. The petitioners argued that the activists were arrested without any credible material or evidence justifying their arrest. The FIR was based on a statement by Tushar Ramesh Damgule, alleging that the activists incited violence through speeches and performances at the Elgar Parishad event on 31st December 2017.3. Allegations of political motivation and suppression of dissent:The petitioners contended that the arrests were politically motivated to deflect attention from real issues and to suppress voices helping the poor and marginalized. They highlighted that the FIR against the activists was fabricated and engineered to target them instead of addressing the actual perpetrators of the Bhima Koregaon violence.4. Request for independent investigation:The petitioners sought an independent and credible investigation into the arrests, emphasizing that anything short of this would irreparably damage the fabric of the nation. They clarified that their intention was not to stop the investigation but to ensure its independence and credibility.5. Maintainability of the writ petition by third parties:The State of Maharashtra raised objections regarding the maintainability of the writ petition, arguing that it was filed by third parties who were strangers to the offense under investigation. The petitioners, however, argued that the petition was filed in the public interest to protect democratic values and human rights.6. Involvement of the accused in unlawful activities:The State of Maharashtra, in its counter affidavit, asserted that the arrested activists were not targeted for their dissenting views but for their involvement in serious offenses, including being active members of the Communist Party of India (Maoist), a banned terrorist organization. The affidavit detailed the investigation process, including searches, seizures, and the material gathered implicating the activists in planning and executing criminal activities.7. Conduct of the police and media leaks:The petitioners accused the Pune Police of leaking documents to the media to spread false propaganda against the activists and prejudice public opinion. They argued that the police's selective leaks and media briefings undermined the fairness of the investigation and cast doubts on the impartiality of the process.8. Request for Special Investigating Team (SIT) and court-monitored investigation:The petitioners sought the constitution of a SIT comprising senior police officers with impeccable records, reporting directly to the court, to ensure a fair and independent investigation. They also requested that all electronic devices and materials seized be examined by a Forensic Sciences Laboratory outside Maharashtra.9. Legal remedies and rights of the accused:The court noted that the accused had already taken recourse to legal remedies before jurisdictional courts. The court emphasized that the accused could pursue bail, discharge, or quashing of the criminal case if there was no legal evidence indicating their complicity. The court refrained from making observations on the merits of the investigation to avoid prejudicing the accused or the prosecution.Conclusion:The court concluded that the consistent view is that the accused cannot ask for changing the investigating agency or for a court-monitored investigation. The petitioners, as next friends of the accused, cannot be heard to ask for reliefs that cannot be granted to the accused themselves. The court dismissed the writ petition, allowing the accused to pursue appropriate remedies as per law. The interim order of house arrest was extended for four weeks to enable the accused to move the concerned court.